Mercy Dare N.O. v Mudiwa C. Muzembe & 2 Ors

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IN THE LABOUR COURT OF
JUDGMENT NO LC/H/50/2024
ZIMBABWE HARARE 25 JANUARY, 13
FEBRUARY 2024
CASE NO LC/H/355/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE 25 JANUARY, 13

FEBRUARY 2024

JUDGMENT NO LC/H/50/2024 CASE NO LC/H/355/23

MERCY DARE N.O.	APPLICANT

MUDIWA C. MUZEMBE	1ST RESPONDENT

CONRAD MUZEMBE	2ND RESPONDENT

STARAFRICA CORPORATION LIMITED	3RD RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	No appearance

For 1st Respondent	Ms M. Muzembe

For 2nd Respondent	Mr C. Muzembe

For 3rd Respondent	No Appearance

MUSARIRI, J:

On the 30th March 2023, Applicant in her capacity as a Labour Officer issued a ruling. She dismissed 1st and 2nd Respondents’ (employees) claim of unfair and unlawful termination of employment by 3rd Respondent (employer). Applicant then applied to this Court on 15th May 2023 for the confirmation of her ruling as per Section 93(5a) of the Labour Act Chapter 28:01. The both employees opposed the application whilst the employer supported it.

The rationale for Applicant’s ruling is set out thus;

“An analysis of the facts shows that both claimants were given notice of retrenchment by the respondent. Amendment of the Labour Act does not obligate the employer to a minimum of the number of employees to be retrenched. The respondent also notified the Retrenchment Board of its intention to retrench by the respondent. They also concur that retrenchment package negotiations were held. It was just unfortunate that the parties could not agree on the retrenchment package. Section 12c of the Labour Act…..

The respondent paid the minimum retrenchment package since the parties reached a deadlock and this is as provided in terms of the above provision.

I do not find where the respondent acted unlawfully on the termination of the claimants’ contracts.”

The employees opposed the application on the basis that Applicant did not deal with their matter properly in accordance with Section 93 of the Labour Act. They stated that there was no conciliation conducted. Applicant just requested submissions from the parties and then issued her ruling. They relied on the case of

Isoquant v Darikwa CCZ 06/20 where the ConCourt noted that;

“Conciliation as a method of dispute resolution is different from adjudication, which involves the use of power by the third party to resolve the dispute between the parties. Procedures such as hearing oral submissions or the production of written submissions by the parties and determination of the matters in dispute, typically of adjudication are alien to the conciliation process.”

In her founding affidavit applicant stated as follows;

“8. Conciliation hearings were conducted and parties filed written submissions.

9. The Applicant/Labour Officer in arriving at its decision/ruling relied on the following:”

She is supported by the employer whose Heads of Argument stated

“2.  The Applicant attempted to settle the matter through conciliation to no avail which in turn led to the Applicant issuing a Certificate of No Settlement and eventually a draft ruling in favour of the 3rd Respondent.”

In the absence of Applicant and the employer, the employees’ claim cannot be discounted. Applicant might have assisted by availing notes of the conciliation she conducted, which is the usual practice in these matters. Such notes are missing from the record. The net result is that there no proof that are proper conciliation was done per provisions of Section 93 of the Act. The absence of proper conciliation invalidates the both Certificate of No Settlement and draft ruling.

Wherefore it is ordered that,

The application for confirmation of ruling be and is hereby dismissed;

The draft ruling issued by Mercy Dare N.O. is set aside;

The matter is remitted back to Applicant (or her successor) for fresh conciliation of the parties’ dispute in terms of Section 93 of the Labour Act Chapter 28:01.

G. MUSARIRI J-U-D-G-E